JUDGMENT Chaudhary Sia Saran Sinha. J. This Civil Revision under Section 115 (1) (b) of the Code of Civil Procedure (here In after referred to as 'the Code') is directed against the order dated 16.5.1978 of the Munsif at Ranchi, passed in Misc. Case No. 20 of 1978, by which he dismissed the miscellaneous case for default. The facts, relevant for disposal of this Civil Revision, which are undisputed, are these. on the basis of a deed of lease dated 25.9.1965, opposite party 1 to 4 of this Civil Revision instituted Title Suit 497 of 1967 against one Md. Shafi (opposite party no.5), the petitioner of this Civil Revision being the full brother of Md Shafi. The suit was for eviction of opposite party no.5 from what was described therein as a vacant piece of land as also for compensation and damages. Md. Shaft contested that suit by filing a written statement. The suit was decreed by judgment dated 31.7.1976 by which Mr. Shafi was directed to give vacant possession of the suit land to opposite party nos. 1 to 4 within 60 days from the passing of the Judgment. Certain amount was also decreed. Md. Shafi carried the matter in appeal and the appeal is still pending. 2. During the pendency of the said appeal preferred by Md. Shafi (opposite party no 5), opposite party nos. l to 4 as decree-holders levied Execution Case No.1 of 1977 with two fold prayers namely, delivery of possession over the land leased out as also for realisation of the decretal amount of Rs.1950/-. The filing of this execution case led Md. Shaft to file a stay petition before the appellate court and the execution proceeding was stayed on the condition that Md. Shafi should deposit Rs.21,000/- within the time stipulated there in. This order did not suit Md. Shafi and he carried the matter in Civil Revision to this Court, it being numbered as Civil Revision 245 of 1977 (R). This Court reduced the amount of Rs.21,000/- to Rs.12,000/- and, as agreed to between the parties, Md. Shafi was further allowed the facility to deposit the sum by instalments. Md. Shaft paid two insalments but, on his failure to pay the further instalments, as ordered, opposite party nos. 1 to 4 again proceeded with the execution proceeding presumably after vacation of the stay order. Shafi was further allowed the facility to deposit the sum by instalments. Md. Shaft paid two insalments but, on his failure to pay the further instalments, as ordered, opposite party nos. 1 to 4 again proceeded with the execution proceeding presumably after vacation of the stay order. There was a Civil Revision against the vacation of the stay order as well by Md. Shafi but it remained unsuccessful. 3. On 30.6.1977 Md. Shaft filed a show cause in the execution case praying there in for dismissal of the execution case on the ground that he was running a saw Mill in the land and will be greatly prejudiced if he is evicted there from. This gave rise to Misc. Case No 65 of 1977 but it was dismissed on 10.9.1977 and dell very of possession with the assistance of police was ordered to be issued. 4. It was there after that on 10.5.1978 the petitioner appeared on the scene and filed a petition under order XXI Rule 58 of the Code. It was stated therein that there were two office rooms, three hutments and a machine shed where a Saw Mill was functioning in the firm name M/s Saran Saw mill and that the land in question along with these office rooms, hutments and a machine shed had been taken on rent by the said firm from the decree holders. Although Md. Shafi and the petitioner claimed to be the original partners of this firm but subsequently as alleged therein, Md. Shafi ceased to have any Interest in the same and the petitioner was thus the sole proprietor of the said firm. On these allegations it was asserted that the decree not having been obtained against the petitioner, the entire execution proceedings, although besides the delivery of possession over the land in question it was also levied for realisation of certain amount from Md. Shafi, should be quashed. It may at once be stated that the allegations made in this claim petition was quite inconsistent with the terms of the memorandum of lease (Ext. 10) by which Md. Shafi alone as lessee had taken only the land in question on rent from the opposite party decree holders as also with the judgment of trial court which decreed the suit. 5. 10) by which Md. Shafi alone as lessee had taken only the land in question on rent from the opposite party decree holders as also with the judgment of trial court which decreed the suit. 5. When this claim petition was filed, the office reported, inter alia, on 10.5.1978 it self, that the instant application under Order XXI Rule 58 of the Code, obviously as it stood after the amending Act 104 of 1976, was not maintainable as that rule came into play only when any claim is preferred to or any objection is made to the attachment of any property, attached in execution of a decree, there being no question of any attachment of the land in question the prayer of the opposite party decree holders simply being for delivery of possession there on in pursuance of the decree. While registering this claim petition as Misc. Case 20 of 1978, the executing court passed an order, the relevant extract where of runs as follows : "...Register it as a Misc. Case D/S 21 R. 58 C.P.C. Perused office note. Applicant to comply with the office note and come prepared for hearing on admission, on the date fixed (i.e. 16.5.78) for which the Execution Case has been adjourned." On 16.5.1978, the petitioner (claimant) took no step. The lawyer for the opposite party (decree-holder) was present. The case was called out and none having appeared on behalf of the petitioner on calls, the miscellaneous case was dismissed for default. It appears that after dismissal of Misc. Case 20 of 1978 a petition for time was filed on behalf of the judgment debtor Md. Shafi for adjournment of the execution case, there being no reference of Misc. Case 20 of 1978 therein, which was ordered to be put up by the executing court on 19.5.1978. As the ordersheet of the executing court shows this petition was filed after the dismissal of the Misc. Case for default. On the same date, namely, 16.5.1978, the petitioner, in its turn, filed a petition with a prayer that the Misc. Case may be revived if it is maintainable, which was also ordered to be put up by the executing court on 19.5.1978. Before any orders could be passed in that petition, the petitioner rushed to this court and filed the Instant Civil Revision on 18.5.1978 for setting aside the Impugned order dated 16.5.1978 dismissing Misc. Case may be revived if it is maintainable, which was also ordered to be put up by the executing court on 19.5.1978. Before any orders could be passed in that petition, the petitioner rushed to this court and filed the Instant Civil Revision on 18.5.1978 for setting aside the Impugned order dated 16.5.1978 dismissing Misc. Case 20 of 1978 for default. 6. Although this Civil Revision appears to have been filed under Section 115 (1) (b) of the Code which comes into play where a subordinate court falls to exercise a jurisdiction vested by law, the ground, that was pressed in course of the argument by the learned Counsel for the petitioners, was that the executing court acted without jurisdiction in dismissing the claim petition without even considering the prayer for adjournment made on behalf of the petitioner. While refuting this contention of the learned Counsel for the petitioner, the further contention raised by the learned Counsel for the opposite party decree holder, none having appeared before this Court on behalf of the judgment debtor, was that this Civil Revision was not maintainable. 7. Thus the two short points that arise for determination in this Civil Revision is whether the executing court acted without jurisdiction in dismissing the claim petition and whether the instant Civil Revision is maintainable. 8. Coming to the first point learned Counsel for the petitioners failed to point out the existence of any petition for adjournment filed on behalf of the petitioner before the executing court on 16.5.1978 nor the ordersheet has reference to any such petition. A petition for adjournment, obviously of the execution case, was no doubt filed on 16.5.1978 but it was filed on behalf of judgment debtor Md. Shafi and that too as the ordersheet indicates, only after the dismissal of the claim petition. This is correctly stated, in order no. 39 dated 16.5.1978 of the executing court no step was taken by the petitioner nor anyone appeared on his behalf when Misc. Case 20 of 1978 was called for hearing although, as stated above, the learned lawyer for the opposite party decree holders was present. 9. Order XXI Rule 58 of the Code, as it stands after the Amending Act 104 of 1976, speaks of a claim preferred to, or any objection made to the attachment of, any property attached in execution of a decree, on the ground mentioned therein. 9. Order XXI Rule 58 of the Code, as it stands after the Amending Act 104 of 1976, speaks of a claim preferred to, or any objection made to the attachment of, any property attached in execution of a decree, on the ground mentioned therein. The decree ought to be executed in the execution case having directed the defendant judgment debtor to give vacant possession of the land in question to the opposite party decree holders, undisputedly, no occasion ever arose for the attachment of that property prior to the amending Act 104 of 1976, the relevant provisions of Order XXI Rule 58 (1) of the Code, as amended by the Patna High Court, stood as follows; "Where any claim is preferred to any property the subject matter of the execution proceedings or any objection is made to the attachment there of on the ground that the applicant has an interest therein which is not bound under the decree, or that such property is not liable to attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, in all other respects, as if he was a party to the suit. Provided that no such Investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed." 10. It is undisputed that no such amendment has been made by the Patna High Court after the amending Act 104 of 1976. The scope of the provisions of Order XXI Rule 58 (1) of the Code, as amended by the Patna High Court, is indeed wider than the scope of Order XXI Rule 58 (1) of the Code, as it stands at present after amendment, inasmuch as, as contended at the bar, a claim petition under Order XXI Rule 58 (1), as it stood prior to the Amending Act, might be made In respect of any property, the subject matter of the execution proceeding, eyen If that property did not form the subject matter of any attachment. But the petitioner cannot take advantage of those provisions of Order XXI Rule 58 (1) of the Code, as amended by the Patna High Court, in view of the provisions of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976), 11. But the petitioner cannot take advantage of those provisions of Order XXI Rule 58 (1) of the Code, as amended by the Patna High Court, in view of the provisions of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976), 11. Sub-section (2) of Section 97 of Act 104 of 1976 is, undisputedly, not applicable to the instant case. Sub-section (1) of Section 97 of Act 104 of 1976 lays down as follows: "Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except In so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act stands repealed." It was not disputed that the wider provisions of order XXI Rule 58 (1), as amended by the Patna High Court prior to the amending Act 104 of 1976, in so far as they allow the preferring of a claim even in respect of property, the subject-matter of the execution proceeding, in spite of that property being not the subject-matter of any attachment are Inconsistent with the provisions of order XXI Rule 58 (1), as amended by amending Act 104 of 1976 and that being so to that extent the provisions of order XXI Rule 58 (1) of the Code as amended by the Patna High Court will stand repealed by the amending Act 104 of 1976. It is true that whenever the amended section has to be applied subsequent to the date of the amendment, the unamended provisions of the Act have to be read along with the amended provisions as though they were part of it. But before doing so it has to be scrutinised whether any of the unamended provisions has been repealed by the amending provisions. In the instant case, it would appear from sub section (l) of Section 97 of Act 104 of 1976 that the provisions of Order XXI Rule 58 (1) of the unamended Code, as amended by the Patna High Court, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by Act 104 of 1976, shall stand repealed. 12. 12. Learned Counsel for the opposite party decree holders relied upon in this connection on a single Bench decision of this Court reported in Subhas Chandra, Petitioner V. Her Govind Singh, Opposite Parties. It has been observed as follows :- "Under the aforesaid provision, it is apparent that the right to file a claim or objection is limited to attachment of the property that is to say, the wide scope of R. 58 of O. XXI as amended by the Patna High Court, entitling a claimant to prefer any claim in execution proceeding, as in the instant case, no longer subsists. Sub-Sec. (1) of S.97 of the amending Act (Act 104 of 1976) deals with the repealing provisions and it is laid down therein that any amendment made or any provision Inserted in the principal Act by a State legislature or a High Court before the commencement of this Act shall except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed." 13. In these circumstances, the office rightly pointed out in its note dated 10.5.1978 that the claim petition filed by the petitioners was not maintainable and this obviously involved the question of jurisdiction of the executing court in entertaining any such claim petition. The office notes having weighed with the executing court, after registering Misc. Case 20 of 1978, on the claim petition, the executing court directed the applicant to come prepared for hearing 'on admission' obviously meaning regarding the entertainablity of the claim petition. Order XIV Rule 2 of the Code stated, inter alia, that where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part there of may be disposed of on an issue of law only, it may try that issue first if that issue relates to the jurisdiction of the Court, or a bar to the suit created by any law for the time being in force. Section 141 of the Code provides that the procedure adopted in this Code In regard to suits shall be followed, as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. Section 141 of the Code provides that the procedure adopted in this Code In regard to suits shall be followed, as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. In these circumstances, it cannot be doubted that the executing court was within its rights in fixing a date for hearing about the entertainability of the claim petition, 14. Rule 105 (1) of Order XXI of the Code provides that the Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the bearing of the application and Rule 105 (2) of Order XXI of the Code provides that where on the day fixed or on any other day to which the hearing may be adjourned, the applicant does not appear when the case is called on for hearing the Court may make an order that the application be dismissed. A date for hearing having been fixed and the applicant having not appeared, the executing court was justified in dismissing the claim petition. It was contended on behalf of the petitioners that order no. 38 dated 13.5.1978 of the executing court was not shown to the petitioner's lawyer. It appears to be so but the materials on the record indicate that the petitioner was aware of the order passed by the court on 10.5.1978 and on 16.5.1978 itself, though after the passing of the impugned order, we find the petitioner filing a petition for revision of the miscellaneous case. 15. In the above facts and circumstances it cannot be said that the executing court, while passing the impugned order, acted in a manner contemplated by clause (a) (b) or (c) of sub-section (1) of section 115 of the Code and as such there is no justification for interfering with the impugned order. 16. The contention of Shri N.N. Roy, learned Counsel for the opposite party (decree holders) that the instant Civil Revision is not maintainable is also not without force and It must prevail. Undisputedly the Code, as amended by Act 104 of 1976, will apply to the instant case. 16. The contention of Shri N.N. Roy, learned Counsel for the opposite party (decree holders) that the instant Civil Revision is not maintainable is also not without force and It must prevail. Undisputedly the Code, as amended by Act 104 of 1976, will apply to the instant case. Order XXI Rule 58 (4) of the Code, as it stands after amendment, provides that where any claim or objection has been adjudicated upon under this rule, the order made there on shall have the same force and be subject to the same conditions as to appeal of other wise as if it were a decree. Section 96 (1) of the Code provides that an appeal shall lie from every decree and Section 115 (2) of the Code provides that the High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate there to and the explanation to that sub-section provides that the expression "any case which has been decided includes any order made, or any order deciding an issue in the course of a suit or other proceeding. That being so, the proper remedy of the petitioner, if any, was by way of appeal and not by way of revision. 17. The foregoing discussion lead to the conclusion that there is no merit in this Civil Revision and it is accordingly dismissed but, in the facts and circumstances of this case, the parties are directed to bear their own costs of this Civil Revision. Application dismissed